Docket: T-1495-07
Citation:
2012 FC 45
[ENGLISH
TRANSLATION]
Montréal, Quebec, January 13, 2012
PRESENT: Richard Morneau, Esq., Prothonotary
ADMIRALTY
ACTION IN REM AND IN PERSONAM
BETWEEN:
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NAVAMAR LTD.
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Plaintiff
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and
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RODEL ENTERPRISES
INC.
and
THE SHIP FEDON
and
THE OWNERS AND ALL
THOSE
INTERESTED IN THE
SHIP FEDON
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
In
this case, this is a motion by defendant Rodel Enterprises Inc. (Rodel) to
strike an expert report that was submitted by the plaintiff Navamar Ltd.
(Navamar) on the ground that said report, which is from Mr. Anastasios [Tassos]
Chondromatidis dated September 8, 2011 (the Chondromatidis Report) is not
strictly one report in rebuttal to an expert report submitted by Rodel,
which is the report from Mr. George D. Margetis dated May 3, 2010
(the Margetis Report). The Margetis report was submitted by Rodel in rebuttal
to an initial expert report submitted by Navamar.
Background
[2]
The
essential background that underlies the motion under review appears to be as
follows.
[3]
Early
in 2005, Rodel found that its ship, the Fedon, needed repairs and, with
the help of the ship’s manager, Machrimar Management SA (for which the
technical manager was Mr. Kostokopoulos), Rodel prepared a “Specification
of Repairs” on or around May 28, 2005, and later in early June 2005,
and met with the senior representative of Navamar, Mr. Nicolas
Apostolellis.
[4]
Later,
on June 13, 2005, Navamar gave a three (3)-page quotation or estimate (the
quotation from June 13, 2005) in which we find, among other things, the
following indications:
on the first page: “After
our meeting we are pleased to offer you our best prices for steel plate renewal
as following pages show.”
on third page: “Price
pre Kgr fitted as above mentioned: 2,9 ?”
[5]
We
know that due to various circumstances, additional repairs that were not listed
on the quotation from June 13, 2005, were made on the Fedon later
by Navamar.
[6]
The
central issue that appears to be dividing the parties on merits consists summarily
of knowing whether all of the work done to the Fedon should be settled
according to the price of €2.90 (even €2.75) per kilogram of steel installed (“fitted”
in the quotation from June 13, 2005) or even if the work was not set forth
in that quotation should be paid by Rodel in accordance with a “Price List”
that Navamar says was allegedly sent to Rodel on or around July 5, 2005,
but Rodel, in reply, says that they never received it.
[7]
In
light of that imbroglio, an action for the price was instituted in this Court
by Navamar against Rodel for an amount of $2,000,000.00 (Canadian dollars) on
August 14, 2007.
[8]
The
case conference for this file was held on July 6, 2011. On July 7,
2011, the Court issued an order in which it listed as follows the issues to be
determined at trial (on which the parties agreed, except for question 1f)
below) and included a table (also reproduced below) that detailed the expert
reports that were filed or would be filed by the parties:
Issues
to be determined at trial and expert evidence of parties in relation thereto:
1. The parties agree that
the following five questions are the issues to be determined at trial:
a) Was there a fully
formed agreement between the parties concerning the amount that Navamar Ltd. (“Navamar”)
would be entitled to charge Rodel Enterprises Inc. (“Rodel”) for the repair of
the M.V. FEDON? If so, what are the contractual terms pursuant to which
Machrimar, on behalf of Rodel, and Navamar agreed to carry out the steel
renewals and other upgrades and repairs on the M.V. FEDON?
b) More particularly, did
Navamar agree to reduce its initial offer made on June 13, 2005 to carry
out the steel renewals from €2,90 per kilogram of “fitted steel” to €2,75 per
kilogram of “fitted steel”?
c) Assuming that the term
“fitted steel” is relevant to determining the value of the repair work
performed by Navamar, what is its meaning in the industry practice of the
Perama repair zone? More particularly:
i)
What
costs or expenses are included in a bid made on the basis of a unit price per
kilogram of “fitted steel”?
ii)
What
risks are assumed by the repair contractor when steel renewals are to be paid
on the basis of a unit price per kilogram of “fitted steel”?
d) What part of the work
performed by Navamar is covered by the unit price per kilogram of “fitted
steel”, assuming that this term is relevant to determining the value of the
repair work performed by Navamar, and what part of the work falls outside the
bid of June 13, 2005?
e) As regards the portion
of the work performed by Navamar that fell outside the parameters of the bid of
June 13, 2005, how is the price of these “extras” to be determined and is
there a balance outstanding to Navamar?
In
addition to the foregoing, plaintiff submits the following consideration to
which defendants object:
f) In the absence of an
express agreement between the parties as to how much the repair work would
cost, the Court will have to determine how the repair work is to be valued.
This will involve a consideration of Greek law, commercial practice as it
existed at the relevant time in the Perama repair zone, prices charged by
Navamar’s competitors for similar work and Navamar’s price lists.
In
support of these issues, the parties intend to call the following expert
witnesses:
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Party calling
the witness
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Area of expertise
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Witness
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Production
Status
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Navamar
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Greek law.
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Mr. George
Iatridis
of Ince & Co.
(in chief)
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Report dated February 18,
2010 and filed on February 19, 2010.
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Navamar
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Common practice for repair
companies in the Perama repair zone and prices charged by Navamar to Rodel
for the work that it carried out to the M.V. FEDON.
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Mr. Tassos
Eleftheriou
of Theta Marine S.A.
(in chief)
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Report dated January 4, 2010 and filed on February 19, 2010.
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Navamar
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Fair costs of the repair work in
rebuttal to Mr. George D. Margetis of Margetis Maritime Consulting
expert report.
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Mr. Tassos Chondromatidis
(under Rule 263 c) iii) F.C.R.
and in strict rebuttal)
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Report to be filed and served
on or before September 9, 2011.
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Rodel
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Common practice for repair
companies in the Perama repair zone and prices charged by Navamar to Rodel
for the work that it carried out to the M.V. FEDON.
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Mr.
George D. Margetis
of Margetis Maritime Consulting
(in chief)
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Report dated and filed on
May 3, 2010.
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[Emphasis
added.]
Analysis
[9]
What
stands out from the table reproduced above is that, according to the typical
approach, the Margetis Report was produced by Rodel in May 2010 in rebuttal
to the report from Theta Marine that was previously produced in chief by
Navamar in February 2010. That sequence does not appear to present any
difficulties.
[10]
Where
the difficulty arises, according to Rodel, is that, as is clearly indicated in
that same table, the Chondromatidis Report from September 2011 strictly
had to be a report in rebuttal to the Margetis Report.
[11]
The
following reasons that we find in the notice of motion under review from Rodel
clearly summarizes the dynamic that the Court had understood, and which led
this Court on July 7, 2011, to circumscribe what the Chondromatidis Report
could cover:
d) The dispute turns, in
large part, of the nature of the agreement between the parties, the terms of
art used by ship repairers and shipowners in Perama repair zone and the extent
of the repairs that were covered by a quote given by the Plaintiff;
e) Of particular
importance is the meaning of the term “fitted steel” in the context of a steel
repairs on a vessel;
f)
These
issues were clearly raised by Rodel in its Statement of Defence;
g) These issues were also
canvassed at length in the course of the examinations for discovery;
h) On January 4,
2010, the Plaintiff filed the expert report of THETA Marine S.A. (“Theta”)
which purports to comment on the merits of the Plaintiff’s case;
i)
On
May 3, 2010, Rodel filed the report of Margetis Maritime Consultants
(“Margetis”) in rebuttal to the Theta report. In that report, Margetis analysed
the evidence, provided background information on repairs in Perama and analyses
the invoices submitted by the Plaintiff and the calculations made by Theta;
j)
Despite
having the Margetis report for over a year, it was only at the Pre-Trial
Conference that the Plaintiff announced its intention to file a report by
Mr. Anastasios Chondromatidis in sur‑rebuttal to the Margetis report
during the first week of September;
k) This request was
opposed by Rodel;
l)
The
Case Management Judge, Prothonotary Me Morneau included in his CMO of
July 7, 2011 that the eventual report of Mr. Chondromatidis must be
in “strict rebuttal”;
…
[12]
After
hearing counsel for the parties and analyzing their motion records, I support
taking Rodel’s position and find that their submissions — and especially
the table that its counsel reproduced on pages 14 et seq. of its
written submissions — fairly and reasonably translate the following
findings made by Rodel at paragraphs 17, 18 and 30 of its written
submissions:
17.
Rodel
objects to the filing of the Chondromatidis Report as it constitutes an
attempt by the Plaintiff to split its evidence. The Chondromatidis Report
examines documents that were already disclosed in the Affidavits of Documents
and discusses issues that were raised in the pleadings and/or during the
examinations for discovery. Navamar had every opportunity to deal with these
issues in its initial report, produced by Theta Marine in January 2010.
18.
A
sur‑rebuttal report, or rebuttal evidence in general from the Plaintiff,
is only be admissible where there are new facts raised in defence that were not
dealt with during the evidence in chief (whether factual or expert) or could
not have been dealt with in the evidence in chief. This is clearly not the case
here.
(…)
30. In light of the above,
it is respectfully that the Chondromatidis Report is essentially confirmatory
of the Plaintiff’s case. It addresses issues and evidence that were
available well before the Theta Report was prepared and that were either
dealt with in the Theta Report or could have been dealt with in the Theta
Report. (…)
[Emphasis
added.]
[13]
While
the Theta Marine report could or should have dealt with all the points that
were raised in the Chondromatidis Report, this division of the expert evidence
by Navamar causes prejudice to Rodel because in addition to the fact that this
report does not comply with this Court’s order dated July 7, 2011,
retaining the Chondromatidis Report would legitimately lead to Rodel wanting to
rebut that report. In addition to causing additional expenditures of energy and
money for Rodel, this new rebuttal would encourage the creation of a sequence
of reports that are not warranted in this case and which may, in principle, be
never-ending.
[14]
For
the above reasons, I no longer find that it is in the interests of justice to
allow the Chondromatidis Report to be retained.
ORDER
CONSEQUENTLY,
Rodel’s
motion is allowed, with costs up to $1,400.00, and the Chondromatidis Report is
stricken from this Court’s record.
“Richard
Morneau”
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